People v. Stewart

193 A.D.2d 769, 598 N.Y.S.2d 981

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Goldstein, J.), rendered June 21, 1991, convicting him of robbery in the first degree, upon his plea of guilty, and sentencing him as a first felony offender to an indeterminate term of 4 to 12 years imprisonment.

Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, to afford the defendant the opportunity to withdraw his plea of guilty.

Upon the People’s concession, we reverse and remit the matter to the Supreme Court, Kings County, to give the defendant the opportunity to withdraw his plea of guilty. The defendant pleaded guilty with the understanding that he would be sentenced to an indeterminate term of 6 to 12 years imprisonment, based upon his status as a second violent felony offender. However, that status was vitiated by the subsequent reversal of his prior conviction (see, People v Steward, 167 AD2d 136). Although the defendant was sentenced as a first-felony offender, the court imposed the maximum term of 12 years imprisonment originally agreed upon based upon his status as a second violent felony offender over the defendant’s objection, after the defendant demanded vacatur of his plea. Accordingly, the judgment is reversed to afford the defendant an opportunity to withdraw his plea of guilty. Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.